Terms & Conditions of Services

Governing Provisions. These terms and conditions (“Terms and Conditions”) apply to custom services, including custom antibody development services requested by Customer (“Work”) and provided by AxioMx, Inc. (“AxioMx”) according to the detailed description in the applicable request submitted by Customer through the axiomxinc.com website as accepted by AxioMx. These Terms and Conditions, together with the AxioMx acceptance, form the entire contract between Customer and AxioMx (“Custom Agreement”), and supersede all prior communications between the parties, whether written or oral, relating to the Work, except for a written contract signed by both parties. Customer’s submission of a purchase order or other similar document, including without limitation the use of a credit, charge or debit card or bank check or draft, to indicate payment for the Work (any of the foregoing, a “PO“) shall be deemed to indicate acceptance of these Terms and Conditions to the complete exclusion of any other terms or conditions appearing or referenced in or accompanying such PO, which are hereby deemed to be material alterations and notice of objection to which is hereby given, notwithstanding anything contained to the contrary in a PO.

Performance of Work. AxioMx shall perform the Work as an independent contractor, using methods, materials, equipment, and/or related intellectual property owned or controlled by AxioMx or its affiliates (collectively “AxioMx Technology”) to provide Client with data and/or materials produced by AxioMx as a direct result of the Work (collectively “Deliverables”), which Deliverables may include data or materials that result from the use of materials supplied by Client (“Client Materials”). AxioMx will make a good faith effort to start and complete all Work on time, and will notify Client if substantial delays are likely. AxioMx will comply with all laws and regulations generally applicable to Work. The Deliverables are not produced in accordance with United States Food and Drug Administration good manufacturing practices or good laboratory practices or in accordance with any other similar laws or regulations in other jurisdictions. The Deliverables are not for use in humans or animals. AxioMx may delegate performance of the Work, or portion thereof, to an affiliate or authorized subcontractor, provided that all Work will be performed in accordance with the Custom Agreement. Performance of Work hereunder is conditioned on Client’s acceptance of these Terms and Conditions. Inconsistent terms of a PO shall not apply unless AxioMx has agreed to them in writing. AxioMx may reject a PO as it deems appropriate, and no Work shall be deemed accepted unless and until AxioMx expressly accepts such Work. AxioMx will endeavor to review and respond to POs within seven (7) working days of AxioMx’s receipt of written POs.

PRICE: The price for any Work offered to Customer shall be the price quoted by AxioMx. The prices stated are exclusive of any taxes, fees, duties, licenses or levies (“Taxes”) now or hereinafter imposed upon the performance of the Work or the payment therefor. Any Taxes related to the Work shall be paid by Customer (other than a tax measured by AxioMx’s net income) or in lieu thereof, Customer shall provide an exemption certificate acceptable to the taxing authorities. All Taxes shall be billed as a separate item on the invoice.

PAYMENT TERMS: The fees for the Work shall become due and payable as described in the applicable acceptance by AxioMx. If payment is not received by the due date, a service charge will be added at the rate of 1.5% per month (18% per year) or the maximum legal rate, whichever is less, to unpaid invoices from the due date.

CREDIT TERMS AND COLLECTION COSTS: AxioMx may, at any time and in its sole discretion, limit or cancel the credit of Customer as to time and amount, and as a consequence, may demand payment in cash before delivery of any unfilled portion of any Work or PO, and may demand assurance of Customer’s due performance. Upon making such demand, AxioMx may suspend any or all Work. If, within thirty (30) days, Customer fails to agree and comply with such different terms of payment and/or fails to give adequate assurance of due performance, AxioMx may by notice to Customer treat such failure or refusal as a repudiation by Customer of the portion of the Work or PO not then fully performed, whereupon AxioMx may cancel all further Work and any amounts for Work performed up to that point shall immediately become due and payable. If AxioMx retains a collection agency and/or attorney to collect overdue amounts, all collection costs, including attorney’s fees, shall be paid by Customer. Customer’s issuance of a PO or payment or acceptance of any Deliverable shall constitute a representation that Customer is then solvent and expects to remain so.

CUSTOMER MATERIALS: Customer will provide AxioMx with all relevant environmental, health, and safety (EHS) information relating to any materials that Customer provides to AxioMx. Customer represents and warrants that all Customer materials are not inherently dangerous and are safe when handled with normal laboratory procedures as supplemented by the EHS information provided by Customer, and that Customer holds all rights necessary to transfer the materials to AxioMx for the performance of the Work. Any Customer materials not consumed in the Work or required for additional Work will be destroyed after six months.

INTELLECTUAL PROPERTY: Each of AxioMx and Customer agree that all pre-existing intellectual property (“Background IP”) of either of them remains the property of the party that created it and the other party shall have no right or license to it. Each party shall remain the sole owner of any intellectual property it has developed or otherwise possesses prior to or develops outside of the Work. Nothing herein shall be regarded as an express or implied transfer or license of a party’s Background IP.

AxioMx is the sole and exclusive owner of all right, title and interest in and to all intellectual property claiming or covering AxioMx Technology, including antibodies, antibody fragments, peptides, nucleic acids, or other small molecules that specifically or preferentially bind to a target (“Affinity Reagent”) as well as AxioMx’s phagemid libraries, related library frameworks, complementary-determining regions (CDRs) and linker architecture (collectively, “AxioMx IP”).

RESEARCH LICENSE: For each Deliverable and effective upon delivery of such Deliverable to Customer, AxioMx grants Customer an exclusive, non-sublicensable, non-transferable license under the AxioMx IP, to use the Deliverable solely for internal research or inclusion of Deliverable in products that may be commercialized for Research Use Only. For the avoidance of doubt, Research Use Only expressly excludes (i) any diagnostic, prognostic or therapeutic use, in humans or animals, or for microbiology testing, including food safety testing or environmental monitoring and (ii) any manufacture of the Deliverable and/or any activities primarily directed to such manufacturing.

SUPPLY: AxioMx agrees to supply to Customer, and Customer agrees to purchase from AxioMx, such quantities of the Deliverable as Customer may order from AxioMx for use in connection with any Research Purpose. Customer shall purchase from AxioMx all of its requirements for Deliverables. AxioMx agrees to use commercially reasonable efforts to deliver each Deliverable in accordance with the timelines agreed to by Customer and AxioMx. AxioMx shall deliver all Deliverables EXW AxioMx’s manufacturing facilities (Incoterms® 2010).

PRODUCT LICENSE: For each Deliverable, AxioMx hereby provides Customer the option to negotiate and execute an exclusive product license agreement (the “Product License”) for use of the Deliverable for commercial purposes beyond Research Use Only. The Product License would grant Customer an exclusive, royalty-bearing license, with the right to sublicense, to use the Deliverable to further research, develop, use, sell, offer for sale, import and export one or more licensed products. The parties shall negotiate the terms of the Product License in good faith.

LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES SHALL AXIOMX BE LIABLE TO CUSTOMER OR ANY THIRD PARTY UNDER THIS AGREEMENT OR OTHERWISE FOR (a) ANY LOSS OR DAMAGE CAUSED BY OR ARISING OUT OF ANY DELAY IN FURNISHING ANY SERVICES OR DELIVERABLES OR RESULTS OR ANY ACT OF NEGLIGENCE THAT IS NOT INTENTIONAL OR RECKLESS IN NATURE; OR (b) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF PROFITS, REVENUE, DATA, OR USE), REGARDLESS OF WHETHER AXIOMX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, AXIOMX’S AGGREGATE LIABILITY TO CUSTOMER UNDER THE CUSTOM AGREEMENT OR OTHERWISE SHALL IN NO EVENT EXCEED THE APPLICABLE SERVICES FEE ACTUALLY PAID BY CUSTOMER TO AXIOMX FOR THE APPLICABLE WORK WITH RESPECT TO THE DELIVERABLE(S) OR RESULTS AT ISSUE.

NO WARRANTY: ALL DELIVERABLES AND RESULTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND AXIOMX DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE DELIVERABLES OR THE RESULTS. WITHOUT LIMITING THE FOREGOING, AXIOMX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

INDEMNIFICATION. Except to the extent caused by the willful misconduct of AxioMx, Customer shall indemnify and hold harmless AxioMx, its affiliates and their respective officers, directors, employees and agents (“Indemnified Party”) from and against any and all expenses (including, but not limited to, reasonable attorney’s fees) and losses incurred by any such Indemnified Party in connection with any claim asserted by a third party arising out of or based on (a) Customer materials or use thereof in performance of the Work; and/or (b) any product or service of Customer based in whole or part on Customer’s reliance on Deliverables, or any portion or derivative thereof; and/or (c) breach of these Terms and Conditions.

CONFIDENTIALITY: Each of AxioMx and Customer hereby agree to hold any Confidential Information it receives, including the terms of any Work and the Deliverables, in the strictest confidence and to treat it with the same degree of protection as it applies to prevent disclosure of its own proprietary, confidential, or trade secret information, but in no event less than a reasonable degree of care, and not to disclose or otherwise make available the Confidential Information or any portion thereof to any third party by any means whatsoever.

CHOICE OF LAW AND JURISDICTION: This Custom Agreement and the entirety of the relationship between the parties shall be governed by and construed in accordance with the laws of the State of Connecticut, U.S.A. Any litigation or other dispute resolution between the parties relating to this SOW shall take place in the U.S. District Court for the District of Connecticut. The parties irrevocably consent to the personal jurisdiction of and venue in the state and federal courts within the State of Connecticut.